Case Particulars

Tribunal

U.S. Department of Health and Human Services

Date Filed

January 20, 2026

Docket No.

RIN 0945-AA27

Case Status

Comment submitted.

Case Overview

The Equal Protection Project (EPP) submitted a comment to the United States Department of Health and Human Services (HHS) concerning a newly proposed rule change that seeks to clarify that individuals suffering from “gender dysphoria” are not considered disabled under the Americans with Disabilities Act (ADA).

The proposed clarification was necessary because of a 2024 Biden-era rule that simply declared, contradicting the plain text and cases interpreting the ADA, that that “gender dysphoria does not fall with the statutory exclusions for gender identity disorders.”

In other words, that gender dysphoria qualifies as a disability. Having come entirely out of the left-field, the Trump Administration is now seeking to clear up the confusion.

EPP offered HHS two additional considerations in support of the proposed rule change, based on our experience and expertise.

At the time Congress enacted the ADA in 1990, no one spoke of a person’s sex being “assigned at birth,” as if it were a matter about which there could be some doubt. No one spoke of men “transitioning” to become women, and then perhaps “transitioning” back to become men again, as if one’s sex was merely a social or cultural costume. Instead, “gender” was simply another term for a person’s biological sex, either male or female, but in either case fixed and permanent.

Under the ADA, “disability” is defined as: (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” The ADA further explicitly excludes certain conditions from the definition of “disability,” which explicitly includes “gender identity disorders not resulting from physical impairments.” This plain meaning is also how the statute has been interpreted by the courts.

While trendy gender identity theories may be debated in the culture at large, they are a poor basis for legal definitions. The use of “gender” to distinguish between femininity and masculinity, as aspects of personality and behavior, only gained currency in the 1960s. Disputes about “sex,” “gender,” and “gender identity” have since become intensely contentious, with scholars and advocates urging diametrically opposite conclusions. This little known history, while highly persuasive to those with a political agenda to refine “sex” as something other than biology, is irrelevant to the applicable statutory definitions under the ADA. Ideological fashions are fleeting, and nothing ensures that the current transgender paradigm is scientifically valid, or will remain dominant.

Accordingly, EPP supports HHS’s decision to pursue rulemaking to clarify whether “gender dysphoria” meets the statutory definition of “disability. It doesn’t, and the proposed rule will allow the Department to focus on ensuring truly disabled individuals receive the proper legal protections.